SANMUKHRAI KHANDUBHAI DESAI Vs. ARVIND JEKISHANDAS SHROFF
LAWS(GJH)-1979-11-26
HIGH COURT OF GUJARAT
Decided on November 26,1979

SANMUKHRAI KHANDUBHAI DESAI Appellant
VERSUS
ARVIND JEKISHANDAS SHROFF Respondents

JUDGEMENT

N.H.BHATT - (1.) . This is petition by one citizen claiming to be the tenant on the land bearing S. No. 529 admeasuring 7 acres and 20 gunthas situated at village Balda in Pardi taluka of Bulsar District. The land admittedly is such as in which grass naturally grows. The say of the petitioner in the application under sec. 70 (b) of the Bombay Tenancy Act filed by him on 29-11-68 was that he be declared to be a tenant on the land on the ground that he was given the land for cultivation and not only for cutting grass. The Mamlatdar by his order Annexure A confirmed by the Deputy Collector by his order Annexure B held that the petitioner was a tenant on the land because of the notification issued by the Govt. as per the powers conferred on it under the proviso appended to sub-sec. (1) of sec. 2 of the Act. The land in question abounding in natural growth of grass was declared to be one where cutting of grass for any purpose was specified as agriculture. Relying upon this extended definition of the term `agriculture it was contended on behalf of the petitioner that the petitioner should be deemed to cultivate the land personally because he carried on any agricultural operation namely the cutting of the grass only even if this case of actual cultivation of the crop was not believed. The Gujarat Revenue Tribunal however held that the petitioner could not claim the status prayed for by him because he did not fall within the definition of the word `to cultivate given in sub-sec. (5) of sec. 2 of the Act.
(2.) So the first question that falls to be determined in this petition is whether the petitioner can be said to be cultivating the land and on that count a deemed tenant in terms of sec. 4 of the Act. Sec. 4 of the Act is reproduced below :- "4 A person lawfully cultivating any land belonging to another person shall be deemed to be a tenant if such land is not cultivated personally by the owner and if such person is not- (a) a member of the owners family; or (b) a servant on wages payable in cash or kind but not in crop share or a hired labourer cultivating the land under the personal supervision of the owner or any member of the owners family; or (c) a mortgagee in possession. The term `agriculture has been defined in sec. 2 (1) of the Act which reads as follows : " 2 `agriculture includes horticulture the raising of crops grass or garden produce the use by an agriculturist of the land held by him or a part thereof for the grazing of his cattle the use of any land whether or not an appendage to rice or paddy land for the purpose of rab manure but does not include allied pursuits or the cutting of wood only. Provided that in the case of such tracts of land abounding in natural growth of grass as the State Govt. may by notification in the official gazette specify `agriculture shall include the cutting of grass for any purposes. The term `to cultivate is also reproduced hereinbelow : " 2 `to cultivate with its grammatical variations and cognate expressions means to till or husband the land for the purpose of raising or improving agricultural produce whether by manual labour or by means of cattle or machinery. or to carry on any agricultural operation thereon; and the expression `uncultivated shall be construed correspondingly. Explanation: A person who takes up a contract to cut grass or together the fruits or other produce of trees on any land shall not on that account only be deemed to cultivate such land.
(3.) Mr. Vakil appearing for the respondents urged that despite the making of the cutting of grass as an agricultural operation the legislature in its wisdom had not correspondingly amended the definition of the term `to cultivate and his submission therefore was that even if the cutting of the grass is an agricultural operation by virtue of the explanation appended to the definition of the term `to cultivate occurring in sec. 2 (5) the petitioner cannot claim that he is cultivating the land. The explanation specifically states that whoever takes up a contract to cut grass or to gather fruits or other produce of trees on any land shall not on that count only be deemed to cultivate such land. It was in the fitness of things that with the insertion of a proviso enlarging the ambit of the term `agriculture the Government should have sought the modification of the explanation appended to the definition of the term `to cultivate but unfortunately the said definition of the term `to cultivate has remained unamended with the result that whenever the term `cultivate arises in the context of cutting of grass alone the man who has taken upon himself the job of cutting grass alone cannot be deemed to cultivate such land. The petitioners claim rested essentially on the ground that he was lawfully cultivating the land. The reasoning beneath the argument advanced by Mr. Vakil in my view deserves to be accepted as the inevitable corollary of the process of logic. Sec. 2 contains various interpretation clauses. They by themselves are not substantive law. The petitioner in his turn claims his alleged status on the ground of sec. 4 which is required to be interpreted in the light of the term `cultivate occurring therein and in order to know what to `cultivate is we have to perforce advert to its definition occurring in sec. 2 (5) with its explanation. This is certainly anomalous but it is for the Legislature to rectify this sort of anomaly or for the Government to move suitable machinery for bringing about the desired change. As far as the abstract law is concerned the only conclusion that could be drawn is that a man who is given contract only to cut grass or to collect fruits from some land cannot claim to cultivate that land.;


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